The End of Fiction in Employment? New Powers for Labor Inspectors
Labor inspectors will be given new powers: they will be able to order the conversion of a B2B contract, a contract of mandate or a contract for specific work into an employment contract, provided that the terms of cooperation meet the requirements of the employment contract. Currently, courts have such powers.
TVN24 has established that changing the regulations to give labor inspectors new powers is a priority for the Ministry of Family, Labor and Social Policy and the National Labor Inspectorate. Intensive work on the project is underway.
New powers for labor inspectors
— The labor inspector cannot currently issue an order, and can only apply to the court to determine the existence of an employment relationship. However, this requires, among other things, cooperation with the employee, and the employee does not always want such a transformation. Often, he is also afraid of taking action against his employer — explained Tomasz Zalewski, acting spokesman for the Chief Labor Inspector, on TVN24.
The criteria that inspectors will take into account will include, among others, providing work at specific hours. – During the inspection, the labor inspector should be able to determine which of these points in the relationship between entities are exhausted. Then, without the participation of the court, he should have a tool to issue an enforceable decision – said Tomasz Zalewski.
The aim of the new regulations is, among other things, to combat abuses related to so-called junk contracts and B2B contracts. In many cases, such a contract is concluded, although the person performing the duties de facto works as a full-time employee: they follow the instructions of their superior, appear in the place indicated by him, work at specified hours… Very often, this suits the person performing the work, because as an entrepreneur they pay lower contributions than they would pay if they were employed under an employment contract. Hence the popularity of B2B, or sole proprietorships, among programmers, managers, consultants. The fact that they issue only one invoice per month is proof that they are circumventing the regulations.
The army of people employed on so-called junk contracts is a different matter. An employee of a small shop, a manufacturing plant or a moving company probably did not choose such a contract, it was imposed on him by a company that is looking for savings in this way.
What about the principle of freedom of contract?
The money.pl service asked Dr. Katarzyna Kalata, legal advisor at the Kalata Law Firm, for an opinion. She pointed out that the changes proposed by the Ministry of Labor may raise doubts due to possible interference with the freedom to conclude contracts.
– This is one of the foundations of civil law, providing the parties with the possibility of freely shaping their legal relations, provided that they are not contrary to the provisions of the law, the principles of social coexistence and the nature of the legal relationship – she explained in an interview with money.pl.
In her opinion, the risk of reclassifying a B2B contract as an employment contract applies especially to situations where the employee formally runs a business activity, but in fact the way he or she works does not differ from an employment contract.
— In such a case, ZUS can verify the validity of the insurance title at any time. Additionally, if the work was performed for one contractor and the former employee issues only one invoice per month, the authorities will have an easy task of questioning such a form of cooperation — she emphasized.
